Aldana v. Holub
| Decision Date | 28 February 1980 |
| Docket Number | 53227,Nos. 53612,s. 53612 |
| Citation | 381 So.2d 231 |
| Parties | Luis ALDANA, M. D., Petitioner, v. Patricia Ann HOLUB, Respondent. Dr. Marshall ABEL et al., Petitioners, v. Robert KIRSCHGESSNER et al., Respondents. |
| Court | Florida Supreme Court |
David L. Holbrook, of Wells, Gattis & Hallowes, Orlando, for Luis aldana.
Richard A. Sherman, of Wicker, Smith, Blomqvist, Davant, Tutan, O'Hara & McCoy, Miami, for Dr. Marshall Abel, Dr. Norman Borken, Dr. Morton S. Corin and Dr. Francisco Suarez.
Bradford Swing, James E. Tribble and James C. Blecke, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for Dr. Marcos A. Zequeria, Jr.
Gary M. Carman and Robert L. Koeppel, of Koeppel, Stark & Newmark, Miami, for Miami Intern. Hospital, Inc., petitioners.
Larry Sands and Sarah E. Hague of the Law Offices of Larry Sands, Daytona Beach, for Patricia Ann Holub.
Law Offices of Simons & Schlesinger, and Carol M. Anderson, of Anderson & Anderson, Fort Lauderdale, for Robert Kirschgessner.
Michael J. Parenti, III, of Preddy, Kutner & Hardy, Miami, for Dr. Harvey A. Grable, respondents.
Larry Klein, Chairman and Janet W. Freeman, West Palm Beach, for The Academy of Florida Trial Lawyers.
David A. Barrett, Armando Garcia and C. Howard Hunter, of Barrett & Bajoczky, and Robert W. Perkins, Tallahassee, for Florida Medical Malpractice Joint Underwriting Ass'n and The Florida Patient's Compensation Fund.
John R. Lawson, Jr., of Dixon, Lawson & Brown, Tampa, for Florida Medical Assn.
Linda Koenigsberg, of Cohen & Kokus, Miami, on behalf of respondents.
Tony Cunningham, of Wagner, Cunningham, Vaughan, McLaughlin & Genders, Tampa, for Bay Area Trial Lawyers.
Wilton L. Strickland, of Ferrero, Middlebrooks & Strickland, Fort Lauderdale, for Broward County Trial Lawyers Ass'n, amici curiae.
These consolidated cases 1 are before us by way of petitions for writ of certiorari from decisions of the First and Fourth District Courts of Appeal, reported at 354 So.2d 1272 and 356 So.2d 11, respectively. Conflict is asserted with, among others, State ex rel. Mercy Hospital, Inc. v. Vann, 342 So.2d 1073 (Fla. 3d DCA 1977), and the District Court of Appeal, Fourth District, has certified the question as one of great public interest. Jurisdiction vests in this Court pursuant to article V, section 3(b)(3), Florida Constitution. We must ascertain whether the time limitation periods in section 768.44(3), Florida Statutes (1979), 2 of the medical mediation act 3 may be extended or tolled in any way, and if not, whether strict application of the statutory periods passes constitutional muster.
On August 11, 1976, respondent filed a statement of claim under the medical mediation act against petitioner, who timely filed his answer to the claim. During the course of the mediation hearing on May 27, 1977, the judicial referee felt it necessary to declare a mistrial due to repeated inflammatory statements by the physician member of the panel indicating prejudice against the claimant. On June 1, 1977, petitioner moved to reset the hearing within the ten-month jurisdictional time limit which was to expire June 11, 1977. This, of course, would have required respondent to waive her statutory ten-day period to challenge panel members, 4 which she expressly declined to do. Petitioner requested alternatively that the referee enter an order tolling the time period until a new panel could be composed. Hamstrung by his perceived lack of authority either to extend the jurisdictional period or to shorten the time in which respondent could challenge for cause, the referee denied petitioner's motions, and the mediation proceedings terminated.
Without reaching the question whether a judicial referee possesses the authority to declare a mistrial of a medical mediation hearing, the District Court of Appeal, First District, denied petitioner's petition for writ of certiorari and held that the referee had no authority to extend the hearing beyond ten months from the date the claim was filed.
On June 28, 1976, respondent Kirschgessner filed a claim for mediation. On December 2, 1976, pursuant to petitioners' motion for an extension of time, the judicial referee set the final hearing for April 6, 1977, within the ten-month jurisdictional period. One-half hour was allotted for the April 6 hearing. Respondent objected at that hearing to the meagre time allotment, arguing that thirty minutes was insufficient to constitute a good faith commencement of the proceedings. * The referee nevertheless instructed counsel to make their opening statements. After hearing respondent's statement, the referee continued the cause until April 15, 1977. Thereafter, the referee on his own motion reset the hearing for May 5, 1977, seven days beyond the ten-month period.
After the trial court denied his motion to terminate the mediation proceedings, the District Court of Appeal, Fourth District, granted respondent's petition for writ of certiorari and quashed the trial court order, holding that jurisdiction of the medical mediation panel could not be extended beyond ten months.
We originally heard oral argument on the statutory issues involved in this cause on September 22, 1978. Because we perceived serious constitutional deficiencies in the practical application of the medical mediation procedure, on November 21, 1979, we called for supplemental briefs from all interested persons on the constitutional issues implicated in the operation of the mediation act. In addition to the original parties, a number of interested groups responded as amici curiae, including the law firm of Cohen and Kokus, The Bay Area Trial Lawyers, The Academy of Florida Trial Lawyers, Florida Medical Association, and Florida Medical Malpractice Joint Underwriting Association and Florida Patient's Compensation Fund. Reargument was heard on the constitutional issues on January 9, 1980.
The parties present an array of issues to this Court. The petitioner in Aldana contends that: (1) a judicial referee has no right to declare a mistrial in a medical mediation hearing; (2) if he does possess such power, the grant of a mistrial in this case should have tolled the ten-month time limit for a hearing; and (3) if a mistrial does not toll the time period, petitioner was deprived of a valuable legal right without due process. The petitioners in Abel similarly assert that a judicial referee's unilateral action in resetting a hearing after expiration of the ten-month period constitutes a denial of due process. With respect to the constitutionality of the medical mediation act itself, respondents argue that the act denies equal protection, is arbitrary and capricious, and effectively insulates medical personnel from legal accountability for their negligence. Petitioners respond that these same arguments were rejected by the Court in Carter v. Sparkman, 335 So.2d 802 (Fla.1976), and that nothing has occurred since that time to cause us to question the wisdom of the Carter decision. Having carefully considered the parties' contentions individually and in conjunction, we are compelled to conclude that the medical mediation act is unconstitutional because the act in its operation has proven arbitrary and capricious.
We note at the outset that the First and Fourth District Courts of Appeal were correct in holding that medical mediation jurisdiction terminated in these cases ten months after the claims were filed. The time limitations set forth in section 768.44(3) are jurisdictional and unalterable; they brook neither tolling nor extensions of time for any reason. 5 Had the legislature intended otherwise, it easily could have included a provision for time extensions in the medical mediation statute. The absence of such language in the act bolsters our conclusion that no extensions were contemplated. Moreover, the jurisdictional nature of the ten-month limitation of section 768.44(3) is dictated by the language of article I, section 21, Florida Constitution, which guarantees the right of every individual to speedy access to the courts of Florida. See the discussion at page 237, infra.
That the time periods in section 768.44(3) are jurisdictional should come as no surprise, for the issue was essentially decided by this Court's promulgation of the Florida Rules of Medical Mediation Procedure. Subsection (d) of rule 20.190 states that medical mediation jurisdiction terminates if "(t)he final hearing has not been concluded within 10 months from the date the claim is filed." The rule further provides that "(s)uch termination is final and cannot be extended, modified or reinstated by the panel, the judicial referee or by agreement of the parties." 6 While we recognize that the mediation rules became effective subsequent to the filing of the claims in these cases and thus have no direct application here, the rules do represent this Court's authoritative interpretation of the medical mediation statute.
Petitioners rely upon three cases, State ex rel. Lund v. Keough, 352 So.2d 572 (Fla. 2d DCA 1977), State ex rel. McGuirk v. Cowart, 344 So.2d 624 (Fla. 3d DCA 1977), and State ex rel. Mercy Hospital, Inc. v. Vann, supra, to support their assertion that medical mediation jurisdiction may be extended under certain circumstances. In each case completion of mediation proceedings within the ten-month jurisdictional period was rendered impossible by a circuit court stay or other judicially caused delay pending this Court's determination of the constitutionality of the medical mediation act. Disregarding for the moment the question of their continuing vitality in the face of our interpretation of the statute, 7 they do not significantly advance petitioners' cause, for they were expressly limited to the unique situation of a delay occasioned by a constitutional assault upon the mediation act itself. Since the resolution of that...
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